The Battle Between Zoning Laws and Green Buildings
When Former Vice President Al Gore wanted to install solar panels on the roof of his home in Belle Meade, Tennessee, a local zoning ordinance frustrated his plan. The ordinance prohibited the placement of energy-generating equipment above ground-level.[1] This, of course, prevented the installation of solar panels on homeowners’ roofs[2]. New ordinances allowing solar panels on roofs in Belle Meade were promulgated in 2007, but required that the panels could not be seen by neighbors or from the street.[3]
State and local zoning codes, authorized by State Zoning Enabling Acts (“SZEA”), dictate land use development.[4] These regulations include height restrictions on buildings, types and uses of buildings, how far buildings are setback from the street, and other requirements.[5] These zoning codes often conflict with attempts by developers to incorporate energy efficient and green building concepts into their building designs.[6] For example, height restrictions on buildings may prevent the creation of green roofs[7], parking requirements may prevent developers from choosing to include no new parking in their building plans[8], and requirements for specific building materials in local zoning codes may prevent developers from designing buildings with green materials.[9]
These issues are particularly relevant given that global warming has become a prescient issue both nationally and internationally. With buildings constituting roughly 38 percent of carbon dioxide emissions in the United States,[10] one way to fight global warming is with energy efficient building codes.[11] Nonetheless, developers will continue to be thwarted by local zoning codes that prevent the type of energy efficient development promoted by these building codes. Although local zoning laws must give way in the face of global climate change, without an overarching regulatory authority, developers will be forced to rely on municipal or state governments to take action, or on the courts to provide a remedy to enjoin enforcement of zoning codes. Federally mandated state review of zoning ordinances is an overdue method for resolving these problems.
Federal legislation requiring states to perform comprehensive reviews of their SZEAs would more effectively and efficiently prevent conflict between local zoning codes and energy efficient building standards. By financing these reviews under the Spending Clause and by allowing states to meet federal targets or face federal preemption, the federal government can incentivize states to spend the time and effort to ensure that their zoning codes will not present barriers to federal energy efficient building code standards. Congress should take up this matter in short order so that green buildings may flourish as soon as possible.
[1] Gore’s Solar Plans Thwarted by Upscale Neighborhood’s Rules, USA Today, March 22, 2007, available at http://www.usatoday.com/weather/climate/globalwarming/2007-03-20-gore-solar_N.htm.
[2] Id.
[3] Id.
[4] Robert C. Elickson and A. Dan Tarlock, Land-Use Controls 39 (1981).
[5] Donald L. Elliot, A Better Way to Zone: Ten Principles to Create More Livable Cities 10 (2008).
[6] See infra notes 7-9.
[7] Compare City of Edmonds Planning Board Minutes, April 26, 2006, 5 (discussing whether green roofs can extend past building height limits) with “LEED 2009 for New Construction” at 17-18 (suggesting the use of vegetated roofs to reduce a heat island effect).
[8] Compare Zoning Ordinance of the City of Phoenix, Ch. 7, § 702(B)(2) (requiring off-street parking) with U.S. Green Building Council, “LEED 2009 for New Construction and Major Renovations,” 10, http://www.usgbc.org/ShowFile.aspx?DocumentID=5546(granting certification points for providing no new parking).
[9] Compare Knoxville, Tennessee Code of Ordinances, Part II, Chapter 23, Article II, § 23-47 (requiring standard Portland concrete (a non-pervious material) to be used in all sidewalks) with “LEED 2009 for New Construction” at 14 (recommending the use of pervious paving to reduce the quantity of stormwater runoff from the site).
[10] U.S. Green Building Council, Green Building Facts, available at http://www.usgbc.org/ShowFile.aspx?DocumentID=5961, citing Energy Information Administration, Assumptions to the Annual Energy Outlook (2008).
[11] See, e.g., H.R. 2454 § 201; America’s Cities ‘LEED’ the Way, Building, May 2005, http://www.buildings.com/ArticleDetails/tabid/3321/ArticleID/2475/Default.aspx.